Mission Creep

CLIFF Notes in RED

By Ellen Nakashima and Spencer Hsu
Washington Post Staff Writers
Wednesday, April 16, 2008; 6:42 PM

The U.S. government will soon begin collecting DNA samples from all citizens arrested for any federal crime and many illegal immigrants detained by federal authorities, adding genetic identifiers from more than a million individuals a year to the swiftly growing federal law enforcement DNA database.

The new policy would substantially expand the current practice of routinely collecting DNA samples only from those convicted of federal crimes, although it would build on a growing policy of states to collect DNA from all those arrested. Thirteen states do so now, and turn their data over to the federal government.

The initiative, to be published as a proposed rule in the Federal Register in coming days, reflects a congressional directive that DNA from arrestees should be collected to help catch a range of domestic criminals. But it also requires collection for the first time of DNA samples from foreigners detained by U.S. authorities.

Although fingerprints have long been collected for virtually every arrestee, privacy advocates say that the move expands the DNA database beyond its initial aim of storing information on the perpetrators of violent crimes.

They also worry that people could be detained erroneously and swept into the DNA database without cause, and that DNA samples from those who are never convicted of any crime -- due to acquittals or a withdrawal of charges -- might nonetheless be permanently retained by the FBI.

"Innocent people don't belong in a so-called criminal database," said Tania Simoncelli, ACLU science adviser. "We're crossing a line." She said that if the samples are kept, they could one day be analyzed for such sensitive information such as diseases and ancestry.

Immigration rights advocates also note that most illegal immigrants are detained for administrative violations, not federal crimes. By adding their DNA to the database, "it casts them all as criminals," said Paromita Shah, associate director of the National Immigration Project of the National Lawyers Guild.

The database expansion was authorized by Congress as an amendment to the Violence Against Women Act of 2006, and billed primarily as a way to track down offenders. "We know for a fact that the proposed regulations will save the lives of many innocent people and will prevent devastating crimes," said Sen. Jon Kyl (R-Ariz.), a sponsor of the legislation. "These regulations are long overdue -- we should have done this 10 years ago."

Government officials say that FBI rules preclude using DNA samples to determine a person's genetic traits, diseases or disorders. "The collection of DNA samples . . . will provide an additional form of biometric identification from persons who would normally be fingerprinted," said Erik Ablin, a spokesman for the Department of Justice.

The proposed rule applies to all federal agencies with authority to arrest or detain, from the FBI to The Border Patrol to the IRS. Although details of the new policy have not been announced, officials said they expected the bulk of the new samples to be collected through cheek swabs.

U.S. officials said that when the measure is fully implemented, roughly 1.2 million people a year could be added to the national database. About 140,000 of those would be people arrested for federal crimes. Many of the rest would be illegal immigrants detained in the United States.

The rule's scope is still being negotiated, officials said. But it would not cover illegal immigrants picked up at sea, people being processed for legal admission to the United States, such as asylum seekers, and people undergoing secondary screening at ports of entry. It was unclear today whether Mexican border crossers who are briefly detained and then released in Mexico would be covered. The Border Patrol made 877,000 apprehensions in 2007, most of them of Mexicans.

The move comes as 13 states -- including Virginia, and recently, Maryland -- have passed laws to enlarge their databanks to include arrestees. California, which has more than 1 million profiles, will begin next year collecting DNA data from all arrestees. These are uploaded to the national database, which today houses more than 5.8 million samples, making it the largest forensic DNA databank in the world.

The National DNA Index System or NDIS was created by the DNA Identification Act of 1994, to store profiles only for those people convicted of serious violent crimes, such as rape and murder. A 2004 amendment expanded the collection to persons convicted of any felony offense, and allowed states to upload DNA profiles from people convicted of misdemeanors and arrestees charged with a crime. In 2006, the law was changed again, enabling states to upload arrestees who had not been charged.

Over the years, NDIS has yielded 65,000 hits in 65,350 investigations, FBI officials said. "I think by any measure, the program has been a success," said Thomas Callaghan, head of the FBI's national DNA database, and the best way to increase its effectiveness is to add DNA samples from arrestees.

<OP  -   BULLSHIT>

Jay Ann Sepich of Carlsbad, N.M., said she applauds the federal legislation. In August 2003, when Sepich's 22-year-old daughter Katie was raped and killed, investigators found her attacker's skin and blood under her fingernails. But no one in the state's database matched the crime scene evidence.

In 2006, moved by Katie's death, the New Mexico legislature passed "Katie's Law," requiring the collection of arrestees' DNA and in December 2006, authorities arrested the man who had killed her daughter. He had been arrested for aggravated burglary. Sepich is now a prominent lobbyist for similar laws in other states.

In Virginia, which adopted one of the first arrestee laws in 2003, about 51 percent of arrestee profiles are eventually removed from the state database because charges are dropped or a case is dismissed, said Pete Marone, the director of the state's department of forensic science. It is the forensic lab's duty to remove the profiles, which can take a year or two, he said. "As long as the case is in process, they're still there," he said.

Jim Harper, director of information policy studies at the libertarian Cato Institute, warned of mission creep. "The natural path is to move from the dangerous criminals down the chain, to anybody who has contact with law enforcement, and after that, you'll have DNA taken when people are born or first enter the country legally."

The proposed rule will be subject to a 30-day public comment period, Ablin said.

just Big Brother continueing to grow.  papers Bitte! and DNA sample plz

wow... if you try to refuse... will they take it by force?

and is it normally AFTER a conviction? or arrest? N/M

seems like a rights violation... especially if you are acquitted... WTF they just keep the data for life?

[BBB]A good citizen wouldn't question their government, we need safety at any cost.[/BBB]

Quoted: just Big Brother continueing to grow.  papers Bitte! and DNA sample plz

Please learn how to spell!!!

FIX BAYONETS FORWARD

Dave_A in 5, 4, 3, 2,......

Seriously, I'm having problems with this..

They want my DNA? I've got a steaming hot tablespoon of it - RIGHT HERE!

Before long we will all have our DNA on record.

You may have a chip that will allow monitoring of you daily actives, what buildings you went in and out, driving patterns, where you are at almost any time.

Big brother is here and turning into a giant.            

This inspired me to change my sigline.

Genetics & Public Policy Center

Genetics Perspectives on Policy Seminar - A Perfect Match? DNA in Law Enforcement

October 01, 2007
Washington, DC

Like many issues involving law enforcement, the question of whose data should be included in DNA databases, and of how that data should be used, is often framed in terms of public safety versus privacy. But as audience members at the October 1 GenePOPS, “A Perfect Match? DNA in Law Enforcement” found out, there are many ethical, legal, and technical aspects to consider in this contentious area, many of which don’t fit neatly within that dichotomy.

Center Director Kathy Hudson, the moderator of the panel, introduced the topic and the speakers: Greggory LaBerge, the scientific director and bureau commander of the Denver Police Department Crime Laboratory; Mitchell Morrissey, the district attorney of Denver; Tania Simoncelli, science advisor at the American Civil Liberties Union; and Stephen Saloom, director of the policy department at the Innocence Project.

A boon to law enforcement

LaBerge explained that a standard forensic DNA profile consists of information about 13 highly variable loci in the human genome. These regions, called short tandem repeats (STRs), contain a sequence of DNA letters repeated many times. Since the length of each STR varies from person to person, these loci are highly useful in identification.

Local, state, and national law enforcement entities use a database called CODIS to store and search DNA profiles. CODIS comprises two separate indices, LaBerge said, an offender index, with 4.7 million convicted offender profiles, and the forensic index, which houses about 183,000 profiles from crime scenes and other sources. States vary as to whom they include in the CODIS database, he said: Some enter only people convicted of certain felonies, some enter everyone convicted of a felony, some include some misdemeanors, and some are considering legislation that would enter all arrestees into the database.

Putting more profiles into the database makes finding criminals easier, LaBerge said, noting that a New York state study showed that when an existing New York forensic database that listed all sex offenders was broadened to include all arrestees, the number of “hits” went up exponentially. However, he said, “The greatest challenge for U.S. law enforcement – and my lab is no exception – is getting the backlog of cases into the database.”

LaBerge ended his talk with a survey of possible future uses of DNA in law enforcement. In the near term, he said,

some agencies are interested in expanding databases to include information on mitochondrial DNA, as well as STRs found only on the Y chromosome (Y-STRs).

The DNA profiles of immigrants to the United States also might be routinely included in the database, he said.

In about 10 years, he predicted, law enforcement may be able to use Y-STR and mitochondrial DNA to predict the geographical origin of a suspect.

Members of the military, who already give a blood sample on enlistment, might be included in the CODIS database, as might police (“just in case they contaminate a crime scene”).

Fifteen years from now, LaBerge said, “We can envision – and this is only a vision… DNA, fingerprints, photos, vehicle registrations, and all other types of data could be linked together in relational databases, so that if I have a DNA profile, I can immediately know your driving record, your military record, a financial profile.”

DNA might also be used to predict a suspect’s medical conditions, he said, and thus help to track him or her down; new technology could enable the collection of DNA profiles at every police stop; and the CODIS database could include everyone in the country.

That future could also include law-enforcement access to medical and research databases, LaBerge noted.

DNA was first used in forensics in the United Kingdom in 1987, said Morrissey, and in Colorado in 1989. He and others are working to expand that state’s DNA database, he said, and outlined some of the legal issues that have arisen in the process.

“If you’re collecting, analyzing, preserving, and storing DNA evidence, the Fourth Amendment is the place you look to determine [whether] what you’re doing [is] reasonable and constitutional,” he said. Collecting DNA without probable cause is not generally permitted, Morrissey explained, but courts have upheld the taking of DNA samples from arrestees because they have “reduced or diminished privacy rights.”

Morrissey also briefly addressed the potential value of familial searching – that is, using similarities between crime scene DNA and a profile to identify suspects related to family members already in the database. This technique has been quite successful in the United Kingdom, he said.

“Heedless expansions”

“I think every person here on this panel would agree that DNA has been a very highly useful tool, both for convicting the guilty and establishing innocence,” Simoncelli began. But, she said, expansion of these databases is cause for alarm.

“In the last few years we have entered into a whole new era of forensic DNA, one where scores of innocent people are getting roped into the criminal justice system by way of their DNA,” she said. This happens, she said, when DNA is collected from arrestees, when familial searching is used, when police ask everyone in the vicinity of a crime scene to contribute DNA for an investigation (a so-called “DNA dragnet”), and when DNA is collected surreptitiously – for example, from a suspect’s cigarette butt or envelope flap.

These practices sweep “people who have never been convicted of a crime, and in some cases never even suspected of a crime” into DNA databases, Simoncelli said, a phenomenon that is problematic for three reasons.

First, she said, when a profile is put into the database, the original biological sample – with all the genetic information it contains – is kept. “Unlike a fingerprint, DNA can reveal all sorts of information about whether we have or are predisposed to now more than a thousand different genetic conditions…; who our parents are, or aren’t; our ancestry; and even some complex and potentially stigmatizing behavioral traits, such as aggression and alcoholism,” she said.

Given the racial disparities in arrest rates, Simoncelli argued that by collecting DNA from arrestees or petty criminals, “we are essentially creating a massive government database and databank comprised mostly of people of color.”

Third, she said, “heedless expansions” will only increase existing error rates, particularly as lab technicians are further burdened with insurmountable backlogs. “It would be absolutely tragic if in our enthusiasm for DNA, we ended up creating a whole new round of wrongful convictions, the very sorts of miscarriages of justice that we’re aiming to set right with DNA,” she said.

To prevent these problems, she recommends that police only be able to collect DNA samples from a person when they have a warrant to do so, or when the person has given “truly informed, voluntary consent.” Only the profiles of convicted criminals should be uploaded to a database, she said, and the original biological material should be destroyed to prevent “further investigation and further mining of our DNA.”

Using databases more effectively

Saloom explained that his organization, the Innocence Project, uses DNA evidence as a uniquely powerful tool in exonerating people wrongly convicted of crimes. “Exonerations have happened throughout, really, our U.S. history, but they’ve seemed isolated, they’ve been contested afterward. But with DNA we know we got it wrong, so we can go back and figure out how that happened and learn from that,” he said.

One of the things the Innocence Project has learned, Saloom said, is that “there are only a limited number of crimes for which DNA is useful, is probative enough to show innocence or guilt,” so databases should be limited to people who have committed those crimes. “There are diminishing returns when you expand further and further,” he said. “If you’re not going to test the crime scene DNA for a year because you’re backlogged trying to collect from other convicted offenders or arrestees, your priorities are in the wrong place.”

In addition to coping with backlogs, Saloom said, crime labs need to focus on properly preserving and storing DNA evidence. “It’s critically important that instead of simply focusing on DNA databases, we think about preserving the evidence in a manner where we can find it, where law enforcement can find it when they need to solve a cold case, so that a petitioner with a credible claim of innocence can access that evidence to prove his innocence,” he said. Finally, he said, police departments need to follow up on hits gleaned from CODIS – something that often doesn’t happen today.

Like Simoncelli, Saloom advocated destroying biological samples collected from suspects and perpetrators, even when data on their 13 CODIS loci are kept in the database. This would alleviate privacy concerns, he said, because “If you kept the DNA profile and destroyed the biology related to it, you wouldn’t have to have an elaborate set of penalties for misuse; you wouldn’t have to worry about people stealing the government information…” There should also be an oversight board, Saloom said, to regulate whose DNA goes into databases at the local, state, and national levels. He mentioned some non-DNA-related reforms to the justice system that the Innocence Project advocates, and concluded, “DNA has provided us with an incredible opportunity to reform and improve the accuracy of our criminal justice system. If we focus just on databases, we’re missing a large part of the point.”

Discussion

Hudson invited the panelists to react to each other’s presentations. LaBerge commented that if no match has been found between crime scene DNA and a profile in the CODIS database, any suspect whose profile is in CODIS can be excluded immediately.

Hudson asked Simoncelli how often errors occur in forensic DNA laboratories, and whether there is oversight aimed at preventing such errors. Simoncelli said the error rate is “very difficult to measure,” but related a story of a case where such an error was detected. LaBerge detailed the current quality control system, explaining that every laboratory uploading profiles to CODIS is audited every two years. Saloom explained that in addition to the routine quality control system, states are now required to have a mechanism to independently “investigate upon any allegation of serious negligence or misconduct affecting the integrity of forensic results in their state.”

Hudson asked the panelists what happens to the DNA profiles of arrestees who are later found innocent, and to the profiles of juveniles once they reach age 18. Morrissey responded that whose DNA can be included in the database varies from state to state, but that “Almost every statute that I’ve seen has allowed for expungement of a DNA sample if it’s an arrestee’s sample. If there are no charges brought, if the person is acquitted, then they can move the court to have their DNA taken out of the database.” As for minors, he said, “In Colorado, kids can only go into our database under very limited circumstances with certain types of offenses, and they, like adults, have the opportunity to have the DNA expunged.”

Simoncelli said that while police can collect and analyze DNA from arrestees, their profiles should not be included in CODIS at that point. “Unless or until that person is convicted of a crime, they are innocent and the Fourth Amendment tells us that the taking of DNA is a search and that the permanent retention of that DNA should not happen unless somebody is convicted of crime,” she said.

LaBerge said that his fingerprints were taken when he immigrated to the United States, and are routinely searched against those left at crime scenes. Simoncelli responded, “DNA is not a fingerprint. Again, we’re not just talking about the 13 STRs that are in the database. We’re talking about the retention of the biology.”

Morrissey said that the utility of DNA databases is not confined to violent crime: Denver recently began using DNA evidence to solve burglaries, and has been successful with this approach. “I think, right now, we’re preventing a large number of crimes by taking those people off the street,” he said.

Saloom pointed out that burglaries are a felony (hence DNA from burglars would be included in CODIS under statutes that limit inclusion to felons). “A concern from the Innocence Project perspective about the expansion of databases too far, and familial partial matches and the like, is the risk that presents to an innocent person. Because if you’re in this database, you’re kind of a usual suspect,” he said.

Expanding the databases to innocent people increases the risk of coincidental matches and false leads, he said. LaBerge said that a coincidental match would not lead to a conviction. “A DNA hit leads to a lead. That lead may be proven completely irrelevant,” he said.

Audience member Lisa Foreman-Neil of the National Center for Biotechnology Information commented that the CODIS system was originally understood to include only 13 loci with no known relevance to health, and that public discourse is needed before law enforcement agencies expand their use of DNA beyond those loci.

Simoncelli responded that if familial searching is used, police may get thousands of partial match hits for a single search, and that they will want to get more information from DNA samples in order to narrow their search. There should be more public discussion about if and under what circumstances this should be allowed, she said.

“I’ve yet to hear anybody in the discussion of familial searching or partial match investigation give me a constitutional Fourth Amendment violation where a policeman collects DNA at a crime scene, that’s compared to DNA that is legally in a database, you identify a potential relative, and you go and talk to that individual,” said Morrissey. “There is no problem with the Fourth Amendment, and I believe that familial searching and partial match investigations fall squarely under the purpose for which these databases were created.” Saloom responded that the question being debated was not one of constitutionality, but “What is the best use of our resources?”

Hudson commented that giving law enforcement access to more resources, such as medical research data, could have unintended effects. “We’re going to have people who all of a sudden are going to know about that and might think twice before they sign up for the next biomedical research study,” she said. “So I think we need to think about, in addition to just getting the bad guys, what other ramifications will these kinds of policies have for us as a society?”

Audience member Susannah Baruch of the Genetics and Public Policy Center asked about a provision in the Genetic Information Nondiscrimination Act (currently pending in Congress) that would allow forensic laboratories to collect DNA from their employees in order to guard against contamination. “Is this an exception that is important? Is it something that labs are doing to ensure that there isn’t contamination? And if it is, is that kind of precaution something that should be done at every step along the way with samples to make sure that employee contamination is not an issue?” she asked. LaBerge responded that his laboratory keeps all its crime scene investigators’ profiles in an index that it uses to check for contamination, but that those profiles are not uploaded to state and national databases. He and others are considering doing this for all police who handle evidence, he said.

Audience member Richard Willing of USA Today asked whether, given the high costs (in dollars and privacy) of DNA databases, the current low rate of hits is acceptable. LaBerge responded that his department had looked at the cost-effectiveness of using DNA evidence in burglary cases, and found that “one dollar spent on DNA yielded 34 dollars of preventive cost that would have come later.” – Shawna Williams

seems like a rights violation... especially if you are acquitted... WTF they just keep the data for life?

No different than fingerprints, in my opinion.

bump for daycrew